F 
585 



THE IMPEACHMElNT OF LEVI HUBBELL 



Bv JOHN BELL SANBORN, Ph. D. 



(From Proceedings of the State Historical Society of Wisconsin, 1905) 



MADISON 
State Historical Society of Wisconsin' 

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THE IMPEACHMENT OF LEVI HUBBELL 



By JOHN BELL SANBORN, Ph. D. 

// 7 



(From Proceedings of the State Historical Society of Wisconsin, 1905] 



MADISON 

State Historical Society of Wisconsin 

1906 



Wisconsin Historical Society 



The Impeachment of Levi 
Hubbell 



By John Bell Sanborn, Ph. D. 

Those who believe that the world is growing better may re- 
ceive encouragement from the fact that the only impeachment 
in the history of Wisconsin occurred in early days. Judge 
Levi Hubbell, who was thus differentiated from the other cir- 
cuit judges of his time, was chosen at the first judicial election 
held in tihe state. The later immunity from impeachment 
may indicate either that oiu" present officials are better than 
those of the past, or that we are less critical than our predeces- 
sors, or less combative — probably the last. The campaign 
material of the present day may seem to belie this statement, 
but we are much more calm and restrained in political matters 
than our fathers were fifty years ago. This solitary impeach- 
ment, moreover, did not relate to a strictly partisan office. 
"Whatever has been the feeling aroused by party strife, and 
whatever have been the charges made in the heat of political 
campaigns, they have never found expression in this drastic 
action of the assembly. Against the judiciary, always well 
removed from political feeling, has this weapon alone been di- 
rected, and in this one instance the senate refused to convict 

The constitution of Wisconsin, adopted in 1848, provided 
for a judicial organization by dividing the state into five cir- 
cuits, in each of which a judge was to be chosen for terms vary- 
ing from t^vo to six years in the first instance, and theraafter 

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Impeachment ot Hubbell 

for six years. These circuit judges were also collectively to 
coustitute the supreme court of the state/ The second circuit, 
consisting of Milwaukee, Waukesha, Jefferson, and Dane 
counties, was the largest and most important. For the elec- 
tion which was to occur upon August 7, 1848, party conven- 
tions were held therein in order to nominate candidates. 
Abram I). Smith, afterwards a judge of the supreme court, 
was nominated by the Democrats, Francis Randall being 
named by the Wliigs." Much dissatisfaction was expressed 
with the Democratic nomination,^ the Madison Argus going so 
far as to refuse to support the candidate in language that 
brought out threats of a libel suit from Smith.* Compara- 
tively late in the campaign Levi HubboU, who had been men- 
tioned as a possible noaninee of the Democrats,^ entered the 
field as an independent candidate. It was some time before 
the result of the election was known, but it was at last ascer- 
tained that Hubbell was elected by a plurality of 6Q votes over 
Smith and 107 votes over Randall.*' 

Tlie successful candidate was bom in iN^ew York state April 
15, 1808. He was a graduate of Union College, later being 
adjutant-general of Xew York and a member of the legislature 
of that state.^ In 1844 he came to Milwaukee, where he soon 
became the senior member of the firm of Hubbell, Finch, and 
Lynde, the other members whereof ^^ Jre Asahel Finch and 
William P. Lynde, both well known in the legal history of the 
state. ^ 



1 Constitution, art. vii, sees. 4-7. 

^Milwaukee Sentinel-Gazette, July 28, 29, 1848. 

^Ibid, July 28, 29, Aug. 1-5. 

■t Madison Argus, July 28, Aug. 1, 8, 1848. 

5 Sentinel-Gazette, July 18, 1848. 

6 According to the Madison Argus (Aug. 28, 1848), the vote stood: 
Hubbell, 1,606; Smith, 1,540; Randall, 1,499. 

7 "Wisconsin Bar Association Reports, i, p. 111. 

8The lives of Hubbell menTion this partnership, but those biog- 
raphies of Finch that I have seen do not. The card of Hubbell, Finch, 
and Lynde appears in the Sentinel for July 20, 1844. 

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111 the drawing of lots by the Tarious circuit judges to de- 
termine tlie lengtii of tiheir respective terms, Judge Hubbell's 
service was fixed at tbree years/ He consequently came up 
for re-election in the fall of 1851. That his conduct had not 
been entirely satisfactory is evident from the opposition mani- 
festeid against him when be became a candidate to succeed 
himself, and that he did not do so at the desire of his party, 
but was nominated by a call of his friends. A convention of 
the Democrats of the circuit, held at Oconomowoc, August 27, 
1851, refused to make any noimination, but passed resolutions 
condemning the procedure of Hubbell." He w^as also opposed 
by the Milwaukee Wisconsin and the Free Democrat^ while the 
News and the Sentinel supported him. The two latter did so 
Ijecause it considered him equal in ability to his opponent, 
while he had had the advantage of three years' experience on 
the bench. Politically, the Sentinel should have opposed him.* 

The opposition to Hubbell appears to have been personal 
rather than caused by the wish for any particular candidate 
in his place ; but at last his former partner, Asahel Finch, 
was chosen by tlie opposition, and the campaign was an ex- 
tremely bitter one, conducted on both sides with small regard 
for the amenities of the occasion. The charges against Finch 
and his fitness for the place do not here concern us. Much of 
the criticism of Hubbell, particularly that of the Free Demo- 
crat, edited by the wrell-known S. M. Booth, was extremely 
abusive.* There w^as little definiteness in the opposition, how- 
ever, and only two direct charges were made against the judge; 
one of these was, that in the trial of one Haney in Dane 
County for assault, the sentence imposed was less than that al- 
lowed by law.^ This also was one of the charges in the 
impeachment, and will be considered m that connection. The 



1 Madison Argus, Aug. 28, 1848. 
^Free Democrat, Aug. 28, 1851. 

3 See Sentinel, Sept. 9, 1851. 

4 See the issues of this paper for August and September, 1851. 
sSfee Sentinel, Sept. 4, 11, 1851. 

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Impeachment of Hubbell 

other charge was connected with the Macaboy case, wherein 
the judge had allowed a defendant in a criminal trial to make 
a stateanent to the jury in his o^vn behalf/ According to mod- 
em standards, this was not a serious accusation ; but Booth 
considered that it showed the grossest maladministration." It 
was claimed at the time of the impeachment that other charges 
against Hubbell were known at tlie time of his re-election and 
published in handbills ;'' but I can find no evidence that charges 
other than those mentioned were made at that time. It is 
significant that the heat of a campaign was able to bring out 
only one of the numerous charges aftei-ward made. Judge 
Hubbell was re-elected by a good mjajority — about 274 in Mil- 
waukee County, 569 in Waukesha, and 100 in Dane, while 
the vote was nearly a tie in Jefferson.* 

^STot long after the beginning of his second term there came 
before Judge Hubbell a case which probably had much influ- 
ence on his subsequent career. The E,a,dcliff murder trial was 
one of the famous incidents in the early days of Milwaukee. 
There seemed no question of tlie gnili of the defeiidant, and 
years later a story was current that the prisoner had confessed 
to his attome}', during the trial, and that this confession was 
communicated to the judge.^ Be this as it may, E-adcliff was 
acquitted by the jury. When the verdict was brought in, 
Judge Hubbell examined it for some time and then asked, 
"Gentlemen of the jury, is this your verdict?" The foreman 
replied, "Yes, your honor;" whereupon Judge Hubbell 
answered, "All I have to say is, if this is so, may God have 



^Free Democrat. Aug. 19, 1S51. 

^Ibid, Aug. 16, 1851. 

3 This statement was made in the Grant County Herald and denied 
in the Free Democrat. See the latter paper for July 23, 1853. 

i Sentinel, Oct. 2, 1851. 

^Sentinel, March 11, 1852; Free Democrat, March 10, 1852; Milwau- 
kee Telegraph, Oct. 31, 1880; quoted in [Prank A. Flower], History of 
Milwaukee, p. 315. 

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mercy on your consciences!"^ The foreman of this juiy was 
W. K. Wilson, of Milwaulcee, and on the twenty-sixth day of 
the following January (1853) he presented to the speaker of 
the assembly a communication charging Hubbell with high 
crimes, misdemeanors, and malfeasances in office." It may be 
that the impeachment would have taken place had that unfor- 
tunate remark never been addressed to himi by Judge Hubbell, 
but this seems doubtful.^ 

A motion to send these charges to ibe judiciar)^ committee 
was lost, 13 to 63 ; and the matter was referred to a select com- 
mittee consisting of P. B. Simpson of Lafayette County, 
Horace T. Sanders of Racine, George W. Gate, of Portage, 
later circuit judge, C, Latham Sholes of Kenosha County, and 
E. ]^, Poster of Dodge.' It will be noted that none of these 
came from HubbeU's circuit. 

A few days later this coimiiittee received permission to send 
for persons, papers, and records; and soon after that the 
speaker was authorized to issue subpcenas as might be required 
by the committee.^ Need of legal assistance was soon felt, and 
E. G. Ryan, who had attained fame in the second constitu- 
tional convention and who was then one of the leaders of the 
Mjilwaukee bar, was summoned by telegraph (January 27), 
and assisted the committee in the investigation until the 
twenty-third of February.*' 

The procedure was that of a grand jury, and Hubbell was 
not allowed to appear, although he stated both to the assembly 
and to the public tliat he desired in every way to assist the 



iFree Democrat, March 10, 1852; Sentinel March 11, 1852. 

^Assembly Journal, 1851, pp. 98-99. 

3 It was stated in the Sentinel (Jan. 29, 1853) that the charges were 
piut forward by another who did not appear, but I find no confirmation 
of this. 

^Assembly Journal, 1853, pp. 98, 99. 

5 Ibid, pp. 110, 118. 

6 Petition in Ryan v. State, in supreme court MS. files. 

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Impeachment of Hubbell 

cominittee.^ On February 23, the committee reported that they 
found that Levi Hubbell had been ''guilty of divers acts of 
corruption and malfeasance in the discharge of the duties of 
his said office, and that public justice requires that the said 
Levi Hubbell should be removed from his said office as judge 
of tjie second judicial circuit." The procedure recommended 
was by address of botli houses in pursuance of section 13, arti- 
cle vii, of the constitution." It was asserted that by proceeding 
in this manner the legislature would not be bound by the strict 
legal rules governing an impeachment.'' 

The assembly decided to impeach, however, and the services 
of Ryan were again requested, he being in attendance from 
March 9 to 27, engaged in the preparation of the charges. 
The articles of impeachment were agreed to by a unanimous 
vote, and the election of managers to conduct the trial resulted 
in the choice of P. B. Simpson, H. T. Sanders, J. Allen Bar- 
ber, George W. Gate, and Elzra Wbeeler.* 

On tlie twenty-second of March the senate resolved itself 
into a court of impeachment. In the absence; of the lieutenant- 
governor, the oath was administered by the chief clerk, to D. O. 
Reed, the president pro tern., who in turn administered it to 
the senators. The managers being then announced, Mr. 
Sanders read at length the articles of impeachment and deliv- 
ered an engrossed copy to the clerk. There were eleven 
charges, each of a general nature, and under these were numer- 
ous specifications, amounting in all to seventy. It is evident 
from this niunber that the committee had with great minute- 
ness reviewed tlie five years of Hubbell's servaces upon the 
bench. In some cases, however, the same matter was presented 
in different form, under different charges ; but the whole num- 
ber of distinct accusations against him was at least fifty. 

iSee letter to the assembly, Feb. 17, Assembly Journal, 1853, p. 259; 
Evening Wisconsin, Feb. 1, 1853; Milwaukee Sentinel, Feb. 2, 1853. 

2 Assembly Journal, 1853, pp. 300-301. 

3 Free Democrat, Feb. 28, 1853, 

* Assembly Journal, 1853, pp. 364-366, 577-581. 

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The first charge was that of receaving a bribe; the second, 
with three specifications, accused him of adjudicating cases in 
which he was interested; the third, with two specifications, 
concerned the inflicting of punishments less than those pre- 
scribed bv Law; tlie fourth, with six specifications, related to 
his acting as judge in cases in which he had previously been 
of counsel ; tlie fifth, with three specifications, was to the effect 
that he had used nLoney paid into court.; the sixth, with three 
specifications, was regarding the consultation with suitors in 
his court; the seventh, with eight specifications, charged him 
with undue partiality; the eighth, with four specifications, 
with immoral conduct; the ninth, with six specifications, with 
arbitrary and oppressive exercise of his judicial functions; the 
tenth, with twenty-one specifications, charged that he had al- 
lowed himself to be approached and influenced out of court in 
suits pending before him; and the eleventh, with thirteen 
specifications, was that he had oflieiously interfered and inter- 
meddled with suits instituted in the courts of the state.^ 

To conduct his defense Judge Huboell had engaged Jona- 
than El. Arnold and James H. Kncwlton, two of the best 
known lawyers of the state, who entered a formal plea of not 
guilty. Meanwhile an adjournment of the legislature was 
taken until the first Monday in June. When that time arrived 
neither the senate nor the assembly was ready to proceed. The 
upper house met each day, but nothing was done for a week 
because of the absence of witnesses.^ Nor were the managers 
for the assembly prepared with counsel, and it was not until 
June 8 that such employment was authorized.^ Kyan was 
again sent for, and it was stated that W. K. Wilson went to 
Milwaidsee to secure him.* Meanwhile, the members of the 



1 Trial of Impeachment of Levi Hubbell, reported by T. C. Leland 
(Madison, 1853), pp. 5-19. 

\2 0f the 55 witnesses subpoenaed, only 6 v/ere present on June 9 — 
Trial, p. 30. 

3 Assembly Journal, 1853, p. 839. 

4 Free Democrat, June 10, 1853. 

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Impeachment of Hubbell 

legislature luid an opportunity to enjoy the early summer 
beauty of Madison. Mr. "W. H- Watson, one of tke editors of 
the Sentinel, -wrote: "Madison is certainly one of the most 
charming spots in the country." Comujenting on its citizens, 
he said that if one of them is complimented on the appearance 
of the town he puts on an air of indifference, '*a sort of I-have^- 
seon-it-look-better-a- thousand- times look'' ' 

Considerable criticism, particularly from Whig newspapers, 
was forthcoming because of the delay in the proceedings." On 
June '3 the witnesses were formally summoned by the sergeant- 
at-arms by calling them tliree times at the door. "The cere^ 
niony was very impressi^'e to the immediate audience. Its 
effect upon the more distant portions of the state we have not 
yet learned," said the Madison Journal (June 10, 1853). As 
a more effective method, attachments were issued by the senate. 

On Monday, June 13, the trial of the case began in earnest, 
opening witli the argument of Mr. Ryan, which, concerned itself 
largely witli the gTounds upon which a verdict of guilty could 
be found in an impeachment proceeding. He argued that the 
right to impeach concerned not only crimes and misdemeanors, 
but also, as a distinct and separate ground, corrupt conduct in 
office. He considered all wilful maladministration of office to 
be corrupt conduct, and said, "he who, no matter how little, de- 
parts from the duties of his office, is guilty of corrupt conduct 
in his office."^ He then took up the various charges, claiming 
that each of them stated a separate reason for the removal of 
J udge Hubbell. His opening speech t( ok the greater part of 
the first day, whereupon the examination of witnesses upon 
the part of the prosecution was begun. Early in the proceed- 
ings Mr. Knowlton, after stating that Hubbell desired a trial 



1 Sentinel, June 13, 1853. 

2 See Sentinel, June 13, 1853; Madison Journal, June 9, 10, 1853; and 
reply to these in Madison Argus and Democrat, June 11, 1853, and 
Free Democrat, June 16, 1853. 

3 Trial p. 47. 

14 [ 201 ] 



Wisconsin Historical Society 

on all of tlie charges, but maintaining tliat consent could not 
confer jurisdiction, objected to the jurisdiction in general, and 
particularly regarding matters which occurred before the new 
term of the judge. These points were to he submitted with- 
out argimient. Eyan, however, argued the questions at some 
Icoigth, and drew out a short reply from Mr. Arnold.^ The 
first objection, based on the use of the words "House of Eepre- 
sentatives" instead of "Assembly" in section 13, article vii of 
the constitution was overruled unanimously, and the second by 
a vote of 19 to 5. 

The next move on tJie part of the defense was to request a 
copy of the testimony taken before the investigating committee. 
This was opposed by Eyan on the ground that the action of the 
committee w^as that of a grand jury, and that such a demand 
was unprecedented,^ and the inspection of the testimony was 
refused.^ 

The examination of witnesses on the part of the proseciition 
then began, and continued tlu'ougli June 25. Some difficulty 
was experienced wuth Albert Smith, a justice of the i>eace of 
Milwaukee, who tlireatened to imprison the assistaut sergeant- 
at-arms for contempt of his court if he persisted in his efforts 
to serve a ^vrit of attachment.* 

i^o particular order was observed in the calling of witnesses, 
the prosecution passing from one charge to anotlier. The 
testimony tlius presented to the senate was confused, the sena- 
tors finding it difficult to obtain any clear idea of the case. 
The heat, moreover, was oppressive, the thermometer ranging 
from 00" to 96° in the shade. During one session Mr. Wat- 
son noted the pi'eoccupations of the various senatoi*s, and re- 
corded tJiat only seven were listening to the proceedings. 



ilbid., pp. 70-77. : ; 

2Z6i(Z, pp. 80-82. 

3 Journal of the Court, p. 49. 

4 Trial, p. 79. He did, however, attend as a witness; see Journal of 
the Court, p. 55. 

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Impeachment of Hubbell 

Jime 27, Mr. Arnold opened tlie case on behalf of Judge 
Hubbell in an address which occupied nearly the entire day. 
In addition to a general consideration of the nature of the 
charges, he took up the specifications separately and discussed 
the testimony which had been brought out by the prosecution.^ 
The examination of witnesses then continued im.til the second 
of July, when Mi-. Knowlton stated that he was willing to 
submit the case to the court without aigument; Mr. Sanders, 
however, refusing to agree imless the assembly Vvould consent 
to this plan. In the afternoon it was announced that the 
prosecution would waive the opening of the case, that the de- 
fendant's attorneys would present their argument first, and 
that the counsel for the state would close. ^ 

On Monday the fourth of July an eficrt was made to hold a 
session of the court, but the number of absentees prevented.® 
On, the follovfing moniing, Mr. Knowlton, after stating that 
some fourteen specifications had been abandoned by the prose- 
cution,* opened the argument for the defense. He occupied the 
greater portion of two days in a thorough discussion of the 
remaining charges.^' His argTiment Vv'as not eloquent, but a 
careful, clear pi-esontation of the facts as viewed from the 
standpoint of the defendant He was followed by his associ- 
ate, reputed one of the most eloquent and skillful lawyers of 
the state;® to one reading these arguments, however, Mr. 
Knowlton's appear superior. It may be that the time which 
he devoted to the matter accounts for this result, but certainly 
Mr. Arnold's argument does not afford much assistance in 
estimating the truth or falsity of the various charges. The 
fact that he was in poor health at the time probably partially 
accounts for this. 



1 Trial pp. 283-337. 

^Ibicl, pp. 469-470. 

3 Madison Journal, July 5, 1853. 

■i Trial, p. 472. 

6 Ibid, pp. 472-556. 

6 lUd, pp. 562-613. 

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Friday morning Mr. Sanders, from the committee of man- 
agers, made a comparatively brief address/ and in the after- 
noon Mr. Eyan began his now famous indictment. He stated 
in opening that he was laboring under great physical disability, 
and that he knew that he could satisfy neither himself nor 
those who desired to hear him." On Saturday morning the 
clerk wished to correct the printed journal of the day before, 
which stated that Mr. Hyan had commenced the argument for 
the "persecution." This soonewhat innocent mistake does not 
appear to have been well received by Mr. Eyan, for he referred 
to it as a "stale and witless jest," and discussed the matter for 
some time, referring especially to the persecution to which 
those who practiced in the second circuit had been subjected.* 

The speech was a severe arraignment of Hubbell, and a 
strong presentation of such portions of the testimony as told 
most strongly against him. Yet despite its eloquence it was 
not effective. Instead of selecting the few charges on which 
there was a possibility of a conviction, and concentrating 
attention upon those, Eyan dwelt upon nearly all of the speci- 
fications. He spoke at great length and with scathing invec- 
tive upon those for which there was practically no proof. He 
magnified trivial incidents into proofs of conaiption, and 
barely secured a single vote for conviction on matters which he 
pressed strongly. The effect was not only to create sympathy 
for Hubbell, but to obscure the strong points of the case. 

Of the seventy specifications first presented, fourteen had 
been abandoned. On nineteen others the vote of acquittal was 
unanimous. In the other cases, one voted guilty on eleven 
specifications, two on four, four on one, five on two, six on six, 
seven on six, eight on four, nine on one, ten on one, and twelve 
on oue. This last vote was a tie of the senate. 



1 Ihid, pp. 614-629. 
^lUa, p. 630. 
3 lUd, p. 658. 



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Twelve of the senators voted not guilty on every specifica- 
tion ; these were Alban, Bashford, Bovee, Briggs, Ciary, Dunn, 
Lewis, Pinckney, Eeed, Sniitli, Seaton, and Sterling. Of the 
remaining twelve Weil, Whittlesey, and Walseley voted guilty 
twice; McLane eleven times; Stewart thirteen times; Vittum 
and Blair eighteen times; Hunter and Bowen twenty times; 
Prentice twenty-one times ; Miller twenty-three times ; and 
Allen twenty-four times. 

There appear no special political or personal reasons for the 
several votes. The senate was heavily Democratic; of the 
seven Whigs five were among the twelve who voted constantly 
to acquit, while the other two voted guilty thirteen and twenty- 
one times respectively. Tliere were two members from Mil- 
waukee, one of whom always voted not guilty, while the other 
voted giiilty twenty times. Of the other members from Hub- 
bell's circuit one always favored himi, while the other three 
voted guilty t^vice, eleven, and thirteen times respectively. 
Allen, who was strongest in his opposition to the judge, repre- 
sented the extreme northwestern portion of the state,^ while 
Miller, who was second in this respect, came from Bock 
County. 

The vote which came nearest to conviction was that on the 
second specification of the fourth charge — that Hubbell had 
been of counsel in an indictment of William S. Hungerford for 
perjury in the United States court ; and at the same time there 
was pending in the state court a case brought by Hungerford 
against Caleb Cushing, in which it was alleged that the same 
questions arose, and Judge Hubbell had beard an appeal of 
this case in the supreme court. There was no dispute as to the 
facts. Hubbell had been Hungerford' s attorney in a motion 
to quash the indictment, and he had heard the Hungerford- 
Gushing case. This was done openly, and even if he had 



1 Crawford, La Cro&se, Bad Ax, St. Croix, Chippewa, and La Pointe 
counties. 



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erred as to his right to so hear die case one would hardly, in 
the absence of some bad motive, call this corrupt conduct. As 
far as obsei-^-ed the testimony was silent as to such a. motive,^ 
But I do not believe that he erred legally. He might have 
avoided suspicion had he declined the retainer from Hunger- 
ford, but a salary of fifteen hundred dollars is not conducive 
to such declinations, A circuit judge then as now, had the 
right to practice in other courts ; the modem practice, however, 
of refusing to exercise this right is to be commended. Hub- 
bell, moreover, was accused primarily of corrupt conduct in 
hearing the case in the supreme court — not in taking the re- 
tainer. 

The Hungerford-Ctishing case involved the perfonnance of 
certain trusts which it was alleged had been imposed in a con- 
veyance of lands made by the plaintiff tO' the defendant. The 
bill of complaint recited the conveyance, set up tlie trusts, al- 
leged non-performance, and demianded a re-conveyance. The 
indiotment of Hungerford was for making an affidavit that he 
had made no agreement to convey these lands at the time he 
had entered them. Hubbell was retained on a motion to quash, 
which of course involved only the legal sufficiency of the indict- 
ment — ^a motion which was never argued, for Judge Miller 
quashed it of his own accord. 

It seems evident that such an eniplojanent did not make 
Hubbell an attorney in the Hungerford-Cushing case. The 
miatter was afterward presented to the supreme court on the 
same grounds as those presented to the court of impeacliment, 
in an appeal from an order of Hubbeli refusing a change of 
venue. Judge Whiton held that Hubbell was entitled to hear 
the case.^ An examination of the cases has convinced me that 



1 The late Justice Newman improperly heard an appeal In the su- 
preme court, but I have heard of no one who has seen in this any evi- 
dence of corrupt conduct. See Case v. Hoffman, 100 Wis. 314. 352. 

2 Hungerford v. Gushing, 2 Wis. 397. 



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Impeachment of Hubbell 

this decision is in accord with the weight of authority/ The 
result of the vote on this specification seems strange, since it 
was one of the weakest charges presented., On many others a 
vote of guilty could much more easily have been justified. In- 
deed, this was the opinion attributed to Eyan himself.^ 

The next vote was on the first charge, that of accepting a 
bribe ; on this the vote stood ten to fourteen,^ Briefly stated, 
the facts on this charge appeared to be that Hubbell had been 
asked by one of the parties to an equity case if he had decided 
it and had replied that he had done so in favor of the inquirer, 
one William Sanderson. He had then asked Sanderson for a 
loan of tW'O hundred dollars, which was granted. After^vai'd 
Sanderson conceived the idea that there was no need of repay- 
ment, and had resisted the efforts of Hubbell to that end.* 
There was a manifest impropriety in a request for a loan under 
such circum-Stances, but the testimony does not make it appear 
that Hubbell regarded this as anything else than a loan. The 
next closest vote (nine to fifteen) was on another aspect of the 
same case, charging Hubbell with consulting with parties out 
of court." It was based on some indefinite testimony of Sand- 
erson's that he had spoken to Hubbell about the case at the 



1 See Cleghorn v. Cleghorn, 66 Cal. 309. 5 Pac. 516; McMillan v. 
Nichols, 62 Ga. 36; Wolfe v. Hines, 93 Ga. 329, 20 S. E. 322; Shoemaker 
V. South Bend Spark Arrester Co., 135 Ind. 471, 35 N. E. 280, 22 L 
R. A. 332; Glasscock v. Hughes, 55 Tex. 461; King v. Sapp, 66 Tex. 519 
2 S. W. 573; Cullen v. Drane, 82 Tex. 484, 18 S. W. 590; Blackwell v. 
National Bank, 97 Tex. 445, 79 S. W. 518; Stevens v. Hall, 8 Idaho 549, 
69 Pac. 282. 

2 It was reported that one of the senators who had voted for convic- 
tion in this case, approached Ryan after the trial and said that the vote 

was pretty close. Ryan answered "Yes, and there wasn't a d d 

thing in that specification anyhow, while you voted unanimously to 
acquit things ten times as bad." — Sentinel, July 16, 1853. 

3 Allen, Blair, Bowen, Hunter, McLane, Miller, Prentice, Stewart, 
Vittum, and Wakeley voted guilty. — Trial, p. 790. 

ilbid, pp. 89-94. 

B Allen, Blair, Bowen, Hunter, McLane, Miller, Prentice, Stewart, 
and Vittum voted guilty. — Ibid, p. 814. 

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time it was brought, and was not nearly so strong as the brib- 
ery charge. 

Eight senators yoted ^lilty on IfouJr other sp€<?ificatio(nsi. 
The first alleged that Hnbbell had purchased a judgment 
against the city of Mihvaukee from one Jonathan Taylor, and 
while so owning it had made a pretended assignment of it to 
one Levi Blossom, and then had heard a suit brought on the 
judgment. A strong prima facie case was made out by the 
state. In defense. Blossom testified that Hubbell had no in- 
terest in the judgment at the time of the suit, but that after- 
wards it was transferred to Henry P. Hubbell, a nephew of 
the judge, because he had sworn to take nothing but cash from 
the city and it was proposed to pay him in bonds. In order 
that he might not be foresworn he had the payment made to 
Henry P. Hubbell.^ The story told by Blossom sounds some- 
what imj)robable; but it was not impossible, and not being di- 
rectly contradicted Hubbell was entitled to a vote of not guilty 
on the testimony as it stands.^ 

A refusal to hold a speeial tenn of court also brought out 
eight votes of guilty. In that case Hubbell took the position 
that in a matter of favor he had the right to distinguish be- 
tween his friends and his enemies ; not necessarily a corrupt 
position, although not entirely altniistic^ 

A phase of the Hungerford case brought out eight votes of 
guilty. This was on specification 8 of article 7 and specifica- 
tion 2 of article 9, wdiich charged that Hubbell had insisted ou 
an argument of a motion at a certain time and that he had re- 
fused to give adequate time for argaiment. In a matter so in 
the discretion of a judge it is almost impossible to predicate 
oornipt conduct on an action of that kind, and there seemed to 



1 Ibid, pp. 391-408. 

2 Hunter, McLane, Miller, Prentice, Stewart, Vittum, Whittlesey, and 
Weil voted guilty. — IMd. p. 790. 

3 Allen, Blair, Bowen. Hunter, McLane, Miller, Prentice, and Stewart 
voted gnilty.— Ibid, p. 800. 

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Impeachment of Hubbell 

be little in this charga^ Under charge S, which a<3)Ciised Hub- 
bell of immoral conduct, there were four specifications. In 
three of these the vote for acquittal was unanimousi, and in the 
fourth one senator voted guilty.* In regard to the Haney case, 
prominent in the canapaigTi of 1851, only one senator voted 
guilty." 

To my mind the charge oonoeming which the testimony was 
the strongest and in which it is difficult to excuse the conduct 
of the judge, was one on which only seven of the members of 
the senate voted guilty. This was known as the Hart divorce 
case, and was contained in specification 3 of article 4. It ap- 
pears from the testimony that while still a practicing attorn^, 
Judge Hubbell had made a somewhat imformal application 
for divorce before Judge Irwin of the territorial cQTirt, which 
had been refused for want of jurisdiction without a hearing, 
i\_fter Hubbell went upon the bench an application was made 
before him for the same divorce upon practically the grounds 
before made, and in the course of the taking of testimony ber 
fore the commissioner he appeared as a mtness regarding cer- 
tain letters that he had written to Mrs. Hart. The matter 
was not contested, and the judge signed the decree,* In this 
matter the proof seems plain, and none of the extenuating cir- 
ciunstances brought forward by the defense were sufficient to 
justify Judge Hubbell's action. It was claimed that it was 
not proven that he had ever received a retainer from Mr. Hart 
in the original action; that the action before him was upon 
different grounds, and he was justified in appearing as a wit- 
ness; and that he did not hear and determine the case because 
it was not contested. On the whole this charge seems to be 
better sustained than any other — the only one upon which 
there appears any doubt as to the propriety of a vote of not 
guilty. 

1 Allen, Bowen, Hunter, McLane, Miller, Prentice, Stewart, and Vit- 
tum voted guUty.—Ibid, pp. 803. 806. 

2 Senator Yittum.— Ibid, pp. 803-805. 

3 Senator Miller.— /bid, p. 792. 
< Trial, pp. 133, 414, 442. 

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Wisconsin Historical Society 

As soon as the result was known it was received by some of 
the j3eople with great enthusiasm, and by others with scorn. 
Hubbell's friends organized a celebration at Miadison, which is 
described by those who favored him as a large and enthusiastic 
affair/ and by those who opposed him as a farce. ^ A similar 
difference of testimony exists regarding the reception accorded 
him in Milwaukee. A special train went to Waukesha to meet 
him, and he was greeted at i\lilwaukee by a large crowd. 
Thig much is clear, but the o'ther evidence conflicts. "It was a 
reception of which Judge Hubbell had every reason to be 
proud," said the Sentinel (July 18, 1853). Bboth, on the 
other hand, headed his account, "The Faroe Completed ;"^ 
but his impartiality is to be questioned because of the extreme 
position he had assumed. 

The sentiment throughout the state was quite evenly divided, 
if we estim]ate it by the newspapers — ^our only means of judg- 
ing. Of those journals whose sentiments I have gathered, either 
by direct consultation of the papers themselves or by ex- 
tracts therefrom, seventeen favored Hubbell and twenty-two 
opposed him.* The bitterest opposition came from the Free 



'i^ Milwaukee Sentinel, July 20, 1853; Madison Journal, July 12, 1853. 

2 Free Democrat, July 14, 15, 16, 1853. 

3 Free Democrat, July 18, 19, 1853. 

* Those favoring were: Milwaukee Sentinel, Milwaukee News, Ken- 
osha Democrat, Mineral Point Tribune, Beloit Journal, Sauk County 
Standard, Potosi Republican, Racine Democrat, Waukesha Chronotype, 
Madison Journal, Sheboygan Lake Journal, Shullsburg Pick and Gad, 
Mineral Point Democrat, Fond du Lac Herald, Fond du Lac Union, 
Sheboygan Secretary, and Ft. Winnebago Republic. 

Those opposing were: Milwaukee Free Democrat, Janesvllle Gazette, 
Janesville Standard, Dodge County Gazette, Racine Advocate, Water- 
town Register, Kenosha Telegraph, Watertown Chronicle, and Democrat 
tic State Register, Janesville Free Press. Washington County Blade, 
Sheboygan Falls Free Press, Sheboygan Chronicle, Der Phcenix aus 
Nordwestern (Sheboygan), Oshkosh Courier, Oshkosh Democrat. Grant 
County Herald, Beaver Dam Republican, Appleton Crescent, Madison 
Argus and Democrat, and Milwaukee Banner. 

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Impeachment of Hubbell 

Democrat, whose most intemperate utterances are found in tke 
issue of Jul J 16, 1853, and continuing for some time afterward. 

In the assembly a resolution was introduced, reciting that 
tiie house had presented satisfactory evidence in support of 
the impeachment, and that the acquittal was neither endorsed 
by the house nor warranted by the evidence. With this resolu- 
tion was presented a letter written by Eeed, president pro tem. 
of the senate, showing that he had favored Hubbell before the 
evidence was presented to the body over which he presided/ 
This resolution was received with indifference by the house, 
and was soon afterwards withdrawn by its author." Much 
was made of Eeed's letter in some quarters, but it indicated 
only that he had from the first believed in HubbelFs innocence. 
It is of course impossible to prevent members of such a body 
as an impeachment court from having an opinion before ques- 
tions are formally presented thereto. 

A curious aftermath of the trial was the failure of the legis- 
lature to agree on Eyan's compensation. The senate wished 
to give him; $2,000, while the assembly would agree to but 
$1,000.^ He at once brought suit in the supreme court against 
the state. The petition stating the emiployment and the ser^ 
vices was demurred to by Eixperience E'stabrook, attorney gen- 
eral; but tlie court decided that Eyan had stated a valid claim 
and ordered a jury trial.* At this the state was not represented, 
and the jury found for Eyan in the simi of $3,000.^ It ap- 



1 Assembly Journal, 1853, p. 981. 

2 Milwaukee Sentinel, July 15, 1853. 

3 The senate also wished to give Knowlton and Arnold $1,000 each. — 
Madison Journal, July 13, 1853. 

•tThe papers, many of them in Ryan's handwriting, are still on file 
in the supreme court records. 

5 The jury was summoned by Willet S. Main, sheriff of Dane County, 
and consisted of James Morrison, John Favill, I. Gray. Abram Ogden, 
A. J. Ward, Meyer Friend, George P. Delaplaine, Charles Lum, Alonzo 
Wilcox, Arch. Treadway, C. B. Cook, and Elisha Burdick. — ^Madison 
Journal, Aug. 11, 1853. 

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Wisconsin Historical Society 

peared that Mr. Estabrook had beeai called out of town by ill- 
ness in his family, and that as soon as he found he could not 
attend the trial had sent to Governor Farwell a messenger 
from Baraboo, who failed to reach Madison in time.^ 

After three years upon the bench Judge Hubbell resigned to 
recommence the practice of law., In 1864 he represented the 
Milwaukee district in the assembly, and in 1869 applied to 
Governor Fairchild for an appointment as circuit judge to suc- 
ceed Judge Arthur McArthur. He had secured a considerable 
endorsement from his circuit, but the governor refused to 
make the appointment, much to Hubbell's disappointment, as 
he had regarded this as a chance for vindication.^ In 1870 
he was appointed United States district attorney for Wiscon- 
sin, holding that position until 1875, dying the following year 
as the result of an accident. 

So far as any evidence has shown, the trial of Judge Hubbell 
was an isolated episode in Wisconsin history. It may be that 
a wider and more intimate acquaintance ^\ath the history of 
the time would explain matters connected with the trial, and 
show its connection with the politics of the day. But the affair 
was very largely personal, and there are no indications that 
partisan, political, or local influence affected its course. 

Judge Hubbell appears to have been a man of strong feeling, 
who made close friends and bitter enemies.^ "^-While the im- 
peachment was directed by personal animus it could not have 
taken the course it did if he had filled his office in a judicial 
manner. While neither dishonest nor coniTpt, his ideals 
were not high and he "was not careful, as is now expected of our 
judges, to hold himself so as to avoid even the slightest appear- 
ance of evil. It seems questionable if a conviction would have 



1 Milwaukee Sentinel, Aug. 22, 1853; affidavits on file in case. 

2 See article by E. E. Bryant in Green Bag, ix, p. 68. Bryant was 
private secretary to Governor Fairchild. 

3 "He has more bitter personal enemies as well as more warm per- 
sonal friends than most other men in the state." — ^W. H. Watson, in 
Milwaukee Sentinel, Jan. 31, 1853. 

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Impeachment of Hubblel 

been warranted by the evidence, although much was brought out 
that placed Hubbell in an unpleasant light. But, however he 
erred, the impeacliment er^'en without a verdicti of guilty, was 
of itself a punishment, and never since has a Wisconsin as- 
sembly felt called upon to make similar charges. 



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LB N '10 



